op-ed

Giant Boobs Trump Newsworthiness As Media Dances With The (Porn) Stars

Stormy Daniels YouTube screenshot/Pornhub

Charles J. Glasser, Jr., Esq. Professor, Media Ethics and Law, NYU

The domestic news cycle might be described as “All Trump, All the Time.” Cable networks, national newspapers and the blogosphere are saturated with reports and opinions based on every breath, twitch or tweet made by President Trump. Although the president does have his defenders, by and large this Wall of Noise — which started on Day One of this presidency — thrums with the drumbeat of imminent disaster, “bombshell” after “bombshell” that turn out to be duds, and a daily deluge of new facts, statements, revelations and actions that the #Resistance media chorus (I’m looking at you, Marty Baron) cheer as proof that “we’ve got him now!

Of course, the Wall of Noise that is the coverage of President Trump does sometimes touch upon serious issues: trade relations, immigration, potential war in the Middle East or Asia and a skyrocketing deficit. But let’s not kid ourselves. In the “we’ve got him now” mode du jour, surely the most important and significant threat to both his presidency and the survival of our Republic comes down to one thing: Giant boobs.

Boobs and bombshells

One of the most cited “bombshells” of last week’s news cycle was the filing of a defamation suit against President Trump by porn star Stormy Daniels (real name Stephanie Clifford) in the Southern District of New York. One media observer noted that Daniels’ attorney Michael Avenatti has appeared in more than 59 on-air interviews in the last two months. That’s more than North Korean “Supreme Leader” Kim Jong-un, French President Macron, or Mike Pompeo, the new U.S. Secretary of State. Face it: those subjects and stories lack the zest and click bait quality of giant boobs. In my view, news editors are confusing the public interest with what is merely of interest to the public. Like traffic accidents and viral videos of cute kittens, giant boobs and their paid-for deployment will always get the lion’s share of attention.

I suppose at this point I should make clear that I am not “boob-shaming” anybody, and that people’s physical characteristics are not rationally related to self-worth or moral standing. That said, even the most fervent feminist or beta-male could not deny that Ms. Daniels’ career is inextricably entwined with her body. Meh, whatev.

By now everyone is aware of the allegations that President Trump, through his attorney Michael Cohen paid Ms. Daniels $130,000 as either “hush money” or for sexual companionship. She provided the press with a sketch of a “mysterious man” who allegedly threatened her, and accuses him of acting on Trump’s behalf. Trump responded by turning his .50 cal. Twitter gun on Ms. Daniels, saying that: “A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it!).” (The tweet is still online). In response, Ms. Daniels claims that the statement has irreparably damaged her reputation and seeks financial compensation. What a shocker. (Not).

What the pundits miss: a thought experiment

Every columnist and television talking head whoever went near a constitutional law class has been opining on the merits of Ms. Daniels’ case. Correctly, they’ve raised a number of legal doctrines with which the media law community concurs (despite its visceral hatred for Trump) reasoning that the case is a loser from the start. Daniels is what the law calls a “limited-purpose public figure” and Daniels must prove that Trump knew his statement was false, and also bears the burden of proving falsity. In addition, Trump can avail himself of defenses such as opinion bearing the indicia of “figurative or hyperbolic language.” Those are all perfectly legitimate defenses and they or some variant thereof will most likely result in a dismissal. Ironically, maybe even hypocritically, those are some of the same defenses that the president has railed against in his quest to “open up libel laws.”

But the only doctrine that really breaks through the Wall of Noise is whether Ms. Daniels had a reputation to protect in the first place. In other words, is Ms. Daniels — by dint of being a porn star — a libel-proof plaintiff?

How bad to you have to be?

In his seminal book “Libel, Slander, and Related Problems”, Second Circuit Court of Appeals Judge and preeminent media law expert Robert Sack notes that “some courts have held that there are persons so notorious that they have no reputation on which to base a defamation lawsuit. Their suits are necessarily frivolous. They are said to be ‘libel-proof’.”

So how notorious do you have to be? The answer is pretty damn notorious. The most famous libel-proof plaintiff may be James Earl Ray, the confessed assassin of Dr. Martin Luther King. Not a lot of redeeming qualities there. A proven history of bad acts can also render a plaintiff “libel-proof.” Robert Cardillo brought a libel claim against a book publisher for his appearance in a book about the mafia. Apparently, to be libel proof you have to be a really bad guy. In Cardillo’s case the judge held that the plaintiff was libel-proof because he was serving 21 years in prison having been sentenced for assorted federal felonies, including convictions for stolen securities, bail-jumping in three different states, conspiracy, and interstate transportation of stolen securities. Not exactly the guy you want to take home to meet Mom.

It’s worth noting that other courts have said that “While the doctrine is most often applied to plaintiffs with criminal convictions, it is not limited to plaintiffs with criminal records.” In an infamous feud between pornographers Bob Guccione and Larry Flynt, Guccione sued Flynt for having accused him of marital infidelity. Partially because the allegations were substantially true, (the guy did get around) the court found that Guccione was “libel-proof” for the purposes of that case.

At the same time, then-D.C. Court of Appeals Judge Antonin Scalia held in one famous case that even when the plaintiff has performed a bad act, one’s reputation is a not a monolith:

“The law, however, proceeds upon the optimistic premise that there is a little bit of good in all of us — or perhaps upon the pessimistic assumption that no matter how bad someone is, he can always be worse. It is shameful that Benedict Arnold was a traitor; but he was not a shoplifter to boot, and one should not have been able to make that charge while knowing its falsity with impunity.”

Here’s a fun trick: Google the phrase “junk bond king” and the first thing you’ll see is a photograph of Michael Milken. As in Justice Scalia’s Benedict Arnold example, Milken isn’t really libel-proof: You can lawfully accuse him of untrustworthiness in financial matters but would face an army of parachuting lawyers if you accused him of selling drugs.

Porn stars are people too

Donald Trump did not say that Stormy Daniels regularly has sex with people for money. For one thing, that’s true, which is an absolute defense to any libel claim. Some of Trump’s defenders in social media have raised the question of whether Ms. Daniels has a reputation to be damaged in the first place and base this question on blurring the distinction between a porn star and a prostitute.

First Amendment attorney Marc Randazza has considerable experience in the adult film industry and has represented several well-known porn stars in various matters. “Pornography is not prostitution,” Randazza says, explaining that “adult video actors are being paid to perform, but not being paid to provide sexual gratification to their sex partner.” Randazza, who has written extensively on the subject, notes that the sex act in adult videos are part and parcel of creative expression and is constitutionally protected: “the gentle tug job of the First Amendment brings us to a happy ending,” quipped Randazza. Some courts have agreed, holding that “traditional interpretations of the word “prostitute” narrow the literal definition to exempt pornography.”

Nonetheless, involvement in pornography carries a social stigma that may — even if unfairly — indicate Daniels still has no real reputation to protect. No matter how sympathetic one may be to porn stars or even “sex workers,” the fact is that reputation (and defamatory meaning) is reflective of the values of local society. Being called gay in San Francisco? No big deal. Being called gay in rural Mississippi? You might have a problem. Randazza has seen anti-porn stigma at work against a number of his clients. Adult video actors often have their career used against them in custody cases, and since the institution of President Obama’s “Operation Chokepoint” program, insurance companies and financial institutions have randomly and without notice closed bank accounts of many in the adult film industry.

“Truth be told,” says Randazza, “a lot of the porn stars I’ve met are really good parents and nice people. If I was asked who I trusted more, a porn star or a Goldman Sachs investment banker, I’d go with the porn star every time.”

Notably, amusing evidence that society considers being a porn star a shameful thing comes not from tightly-wound Baptist preachers or the Paleolithic knuckle draggers who make up Trump Nation. No, it was Stormy Daniels’ own lawyer, Michael Avenatti, who upon first taking the case made clear to CNN that he was holding his nose while considering representing a porn star:

“I knew that she was an adult film star and I haven’t represented any adult film stars. That’s just not what I do,” explained Avenatti. “I mean, I’ve had a real legal career with real cases of significant magnitude and I’ve got a reputation that I’ve built over the years. And I was skeptical about lending that reputation to somebody in the industry, quite honestly […] I met her, and she blew every conception that I had, misconception that I had, out of the water.”

(You may now insert your own jokes about blowing a conception out of the water.)

The libel-proof defendant?

Since this is all a thought experiment anyway, let’s take this issue to the next step. The #Resistance media has thrown everything at the president to see what would stick. (And to be fair, who knows? Someday some of it might.) But notably, two talking points popular with progressives may actually undercut Ms. Daniels’ case.

To begin with, in the never-ending crusade to nullify the 2016 election, the Wall of Noise promulgated thousands of column-inches questioning the president’s mental state. For a while, every utterance, every tweet, every sideways glance by Trump was framed up to support invocation of the 25th Amendment: the man is clearly insane and a danger to himself and society. No, strike that, a danger to the entire planet. He wants to kill us all.

In addition, a more recent parlor game among news organizations is the “everything he says is a lie” trope. This goes well beyond the views of a vulgar comedienne making fun of Sarah Sanders at Nerdprom. A popular trend now in “news” is to quantify the number of times the president has made false statements, and The New York Times runs a popular and frequently updated feature called “The 459 People, Places and Things Donald Trump Has Insulted on Twitter: A Complete List.” Between the 25th Amendment “evidence” and the “everything he says is a lie” meme, the message is that we should not take anything President Trump says seriously. (I, for one, take nothing any politician says seriously).

This is not unlike the prejudice that many people exhibit towards news organizations with which they disagree. I know people who would refuse to believe that the sun rises in the east if it were broadcast on Fox News. I know people who similarly denude The Washington Post of any credibility whatsoever, no matter how provably true the article is. Now everybody is The National Enquirer to somebody.

Anecdotally, I know one media lawyer well connected to the Clinton camp who suffers such an obsession with President Trump that he posts several links on social media every day to articles questioning Trump’s sanity, and feverishly encourages comments supporting the twin notions that: 1) the president is crazy; and 2) the president is not to be taken seriously. Of course, no matter how politely framed, any dissent on his page is either dismissed as “trolling,” disregarded as being pro-Trump, or just deleted. Apparently The Oxford Dictionary is wrong: liberal no longer means “Willing to respect or accept behavior or opinions different from one’s own; open to new ideas.”

The #Resistance club needn’t worry that they are theoretically sabotaging Ms. Daniels’ case because it is highly unlikely that Trump’s defense will actually be “I’m insane and you shouldn’t take anything I say seriously.”

That doesn’t mean that the #Resistance club has no worries: When they insist on making intellectually dishonest or internally inconsistent arguments in the sole pursuit of political ends, it is they — at least outside of Manhattan and Malibu — who will not be taken seriously.

Charles Glasser (@MediaEthicsGuy) was a journalist in the 1980s and later studied at New York University School of Law. After several years as a First Amendment litigator, he became Bloomberg News’ first global media counsel. He is the author of “The International Libel and Privacy Handbook”, teaches media ethics and law at New York University and also lectures globally and writes frequently about media and free speech issues for Instapundit and other outlets.


The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.